Delhi Court Recommends Extradition Of Indian Man To Australia For Rash & Negligent Driving; Dismisses Claim Of Racial Bias

The Additional Chief Metropolitan Magistrate of Delhi has disposed of an Extradition Inquiry Report on the request of the Ministry of External Affairs in respect of one Mr. Puneet (the Fugitive Criminal) for offences committed in Australia. The Fugitive Criminal was allegedly driving a vehicle in a drunken state in rash and negligent manner and had hit two pedestrians walking on the city road, South Bank in the State of Victoria, Australia. As a result of the impact, one of the pedestrian namely Dean Byron Hofstee died and serious injuries were caused to other pedestrian namely, Clancy Coker.

In the proceedings before the Australian Court the Fugitive Criminal was charged with Culpable Driving causing death of Hofstee and negligently causing serious injuries to Coker. He was thereafter, produced before the Melbourne Magistrate’s Court where he was granted bail on his own undertaking with a number of conditions. 

The Fugitive Criminal pleaded guilty in the County Court at Melbourne in the State of Victoria to the offences of culpable driving and negligently causing serious injury. The proceedings thereafter got adjourned and bail of Fugitive Criminal got extended. The Fugitive Criminal was asked to appear at a plea hearing on 20.08.2009 in the County Court, however he failed to appear at the said hearing, as a result of which a warrant of arrest was issued against him by County Court for offences of culpable driving and negligently causing serious injury. 

The Fugitive Criminal reportedly left Australia on 12.06.2009 using passport of another Indian National namely, Sukhcharanjit Singh. Thus, on 02.10.2009, Magistrate’s Court at Melbourne issued a warrant of arrest against the Fugitive Criminal in respect of the offence of improper use of a foreign travel document.

A request for provisional arrest of the Fugitive Criminal was made by the Requesting State, Australia, to the Government of Republic of India as the Fugitive Criminal was reportedly wanted by Authorities in Requesting State to face prosecution for the offences of Culpable driving under Section 318(1) of the Crimes Act, 1958 (Victoria); Negligently causing serious injury under Section 24 of the Crimes Act, 1958 (Victoria) and Improper use or possession of a foreign travel document under Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005, (Commonwealth).

Thereafter, two requests for urgent provisional arrest of the Fugitive Criminal were received from the Requesting State. A formal request for extradition of the Fugitive Criminal dated 03.02.2010 along with supporting documents in six parts were received from the Requesting State. On receipt of order of Ministry of External Affairs, Govt. of India made under Section 5 of the Act, the Court issued warrant of arrest against the Fugitive Criminal under Section 6 of the Act. Despite issuance of repeated warrants against the Fugitive Criminal at his Panchkula, Haryana address, the Fugitive Criminal could not be apprehended. As per report dated 13.02.2011, father of FC gave an affidavit that FC was no more residing in India and had left for Australia. As such, the inquiry proceedings were adjourned sine-die on 04.10.2012 till FC got traced.

On 05.12.2013 an application was moved by Union of India before Court for issuance of production warrants against the Fugitive Criminal as it was reported that a communication was sent by Punjab police, Patiala that the Fugitive Criminal had been arrested on 29.11.2013 and was sent to judicial custody. Production warrants were issued by Court vide order dated 05.12.2013 and the Fugitive Criminal was produced from Central Jail, Patiala, Punjab before Court in Delhi. Copy of documents received from Requesting State were supplied to the Fugitive Criminal and he was remanded to judicial custody by the Delhi Court.

The Ld. Court held that:

“At the outset, in order to ascertain extraditability of offences in question, the most important requirement is that the conduct of FC must constitute an illegal/criminal act under the law of both the Requesting State as well as Requested State. This rule is known as ‘Double Criminality Rule’. While there is no challenge to the fact that the conduct of FC is a criminal offence in both Australia as well as India, the only contention raised on behalf of FC is nomenclature of offences in India vis à vis offences qua which FC is charged in Australia.”

“Thus, totality of acts alleged against the FC are to be taken into consideration and it does not matter if the constituent elements of the offences between the two States differ. Therefore, the argument of Ld. Counsel for FC that UOI has not denominated the offences of Culpable Driving (in Australia) with same terminology by keeping it under the category of Culpable Homicide, is without any consequence.”

Thus, keeping in view the totality of circumstances prima-facie offence under Section 304 Part-II of IPC is made out in the facts of the present case vis à vis Section 318 of Crimes Act, 1958. This section is punishable for imprisonment for a period upto 10 years or fine or both. This offence fulfils the principle of dual criminality and hence, is an extraditable offence.

With respect to Section 24 of the Crimes Act, 1958, which provides for serious injuries caused to a person owing to a negligent act and which is punishable for imprisonment for a period upto 10 years, Section 279 r/w Section 338 of IPC is prima-facie an equivalent offence under Indian Law which is punishable upto 2 years of imprisonment or fine upto Rs. 1,000/- or both. This offence fulfils the principle of dual criminality and hence, is an extraditable offence.

So far as, Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005, Commonwealth is concerned, which is punishable for imprisonment for a period upto 10 years, Section 12(1)(d) of Passports Act, 1967 is prima-facie an equivalent offence which is punishable with imprisonment for a term which may extend to two years or with fine which may extend to Rs. 5,000/- or with both. This offence also fulfils the principle of dual criminality and hence, is an extraditable offence.

The terminology used to define ‘extradition offence’ in the Treaty i.e. an offence punishable with imprisonment for a maximum period of at least one year or by a more severe penalty, is thus, different from language used in Extradition Act, 1962 i.e. an offence punishable with imprisonment for a term which shall not be less than one year. Since, the offences prima-facie made out against FC under Indian Law are under Section 304 Part-II IPC, Section 279/338 IPC and Section 12(1)(d) of Passports Act, which are punishable with imprisonment for a period more than one year and upto 10 years, they fulfil the criteria of ‘extradition offence’ as defined in the Treaty. 
 
Even otherwise, it is well settled that the scope of inquiry by this Court under Section 7 of the Act is limited to ascertain whether the offences in question are extraditable; whether a prima-facie case exists against the FC in support of requisition of the Requesting State; whether the documents received are duly authenticated and whether the offence for which extradition of FC is sought is a political offence. It is not within the jurisdiction of this Court to conduct a trial or to return a finding of guilt in respect of the offences for which FC is wanted for extradition. The final decision to extradite FC to Requesting State effectively rests with the Central Government in terms of Section 8 of the Act.

In view of my report, I hereby recommend to the Union of India the extradition of FC Puneet to the Requesting State i.e. Government of the Commonwealth of Australia for facing trial for the offences of: 

(i)             Culpable Driving under Section 318(1) of the Crimes Act, 1958 (Victoria); 
(ii)           Negligently causing serious injury under Section 24 of the Crimes Act, 1958 (Victoria); 
(iii)         Improper use of a foreign travel document under Section 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Commonwealth).

Union of India v. Puneet